Warren v. De Long , 57 Nev. 131 ( 1936 )

ON PETITION FOR REHEARING September 14, 1936. 60 P.2d 608. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] OPINION Appellant has filed a petition for a rehearing. One of the statements in the opinion of which complaint is made reads: "The real controversy on this appeal is as to the ownership of about 315 head of cattle bearing a JHG monogram brand, which the children claim to own. * * *"

Counsel seeks to make a great point of this. In his petition he says:

"But the evidence is clear, positive and uncontradicted, that the number of cattle claimed by the De Long children is 241 head. But, notwithstanding this evidence, the trial court found that there were 300 head of cattle, and this court places the number at 315.

"Of course, the statement, by way of a recital in the opinion, that there are 315 head of cattle in dispute, could not be very material were it not for the fact that the judgment itself is so grossly erroneous upon this very vital point in the case. This recital, however, becomes very material indeed when this court's attention is called to the fact that the evidence discloses, without contradiction, that there were in fact but 241 head of cattle bearing the JHG brand, and that the trial court gave to the defendants, Bill De Long, Jr., and Jewell De Long, along with three brothers named and a sister, a judgment against the plaintiff, commanding the forthwith delivery to said persons of 300 head of cattle, thus giving judgment against the plaintiff for 59 head more cattle than the evidence clearly showed were in controversy."

By the language complained of we referred to the number of cattle in controversy, merely. The fact is that the plaintiff's complaint, which is sworn to by the plaintiff and signed by counsel, avers, at line five, page 11 of volume 2 of the record, that the number of cattle "which the said defendants by means of a fraudulent conspiracy between themselves have sought to and are now seeking to claim to be the property of the said defendants" are 350 head of mixed cattle. The answer of the children avers that they "now are the owners of, and entitled to the possession of about 300 head of cattle * * * in the vicinity of Happy Creek and range adjacent thereto * * * and about 14 head of cattle located at Bottle Creek ranch branded JHG," 314 in all.

The trial court in its formal findings held that the children were entitled to "about 300 head of cattle * * * which said cattle range in the vicinity of Happy Creek and range adjacent thereto * * * and about 14 head of cattle located at Bottle Creek ranch, * * *" total 314.

1. We fail to see wherein plaintiff was injured by our innocent statement as to the number of cattle in controversy.

We think, too, the evidence sufficient to justify us in not reversing the findings as to the number of cattle awarded respondents.

Counsel complains bitterly of the following language in the opinion: "So far as the plaintiff is concerned it did not matter whether there were three or thirty claiming under that brand."

2. In this connection counsel says "plaintiff never had a day in court with any of these named parties except the named defendants Bill De Long, Jr., and Jewell De Long." In the verified answer filed by Bill De Long, Jr., and Jewell De Long it is stated that other children jointly with them had in their possession and owned a large number of cattle branded JHG. Plaintiff knew long before the trial of the claim of ownership of all the children. He could have asked that they be formally made parties. He did not do so, and now, for the first time, complains that he has not had his day in court. He was not surprised during the trial and we do not see that he has been injured. The judgment should not be reversed for a nonprejudicial technicality, if there be such, of which plaintiff knew and bided his time to urge.

Counsel complains grievously because of the following statement in our former opinion: "This conclusion as to the livestock is, to some degree, fortified by reason of the fact that plaintiff reported to the assessor of Humboldt County, for tax purposes, the cattle claimed under his mortgage, to be greatly less than actually rounded up, as the property of defendants, shortly before this suit was brought."

3. We confess that the statement is inaccurate. Testimony was offered on the trial as to the number of cattle assessed to Wm. De Long, Sr., during the years 1930, 1931, 1932, 1933, and 1934. Counsel for defendant objected to this offer, but finally stipulated as follows: "I will save time by stipulating the record will show that 178 head of cattle were assessed to William De Long, Sr." He further stipulated that the plaintiff paid taxes on that number of cattle for the years mentioned. This correction does not entitle plaintiff to any favorable consideration in the matter.

Counsel also takes umbrage at our ruling as to the claim for hay sold by Wm. De Long, Sr. He says: "From first to last the court, in its opinion, treats this controversy as an action at law for the recovery of the possession of certain personal property. This view of the case at bar is so plainly erroneous that a brief statement of the situation as disclosed by the pleadings will demonstrate its fallacy."

4. The fact is that we disposed of the questions raised, as we understood them, and we think that we decided in accordance with legal principles. As we held, there was no allegation in the complaint even intimating such an issue, hence we could not say that the trial court erred in its ruling. Judgments are reversed for the correction of errors only. Truckee River G.E. Co. v. Durham, 38 Nev. 311, 149 P. 61; Water Co. of Tonopah v. Belmont Dev. Co., 50 Nev. 24, 249 P. 565; Kindel v. Beck Pauli Lith. Co., 19 Colo. 310, 35 P. 538, 24 L.R.A. 311.

We adhere to our former ruling.

5. Relative to the branding on the wrong side of the cattle, we may say that under all of the evidence in the case plaintiff was not misled nor injured. Plaintiff's theory is that the defendants conspired to defraud the plaintiff. Senator Tobin and others testified that it was commonly known that the JHG cattle belonged to respondents. Plaintiff's chief reliance, in an attempt to show a conspiracy to defraud, is based upon the fact that the conditions were such as to be conducive to the perpetration of fraud. This is not enough. Fraud must be proven; it is never presumed.

From a consideration of the entire record, we cannot say that the trial court reached a wrong conclusion.

The petition for a rehearing is denied.